As “baby boomers” come of retirement age, employers may find themselves between a rock and a hard place: they can either ask employees about their retirement plans and risk being accused of age discrimination, or they can avoid those conversations and risk being woefully underprepared for the retirements of key employees.

When done right, succession planning affords employers an opportunity to train the next generation of company leaders, ensure continuity in key roles, and manage all aspects of the transition. However, when done wrong, succession planning can expose employers to significant liability under federal and state age discrimination laws.

The federal Age Discrimination in Employment Act applies to employers with 20 or more employees and prohibits discrimination against workers 40 years of age or older. The Older Workers Benefits Protections Act imposes procedural safeguards for releases that waive rights protected by the ADEA. Additionally, state laws in many jurisdictions provide further protection.

Courts have consistently held that merely asking employees about their retirement plans does not constitute age discrimination. However, insulating your company from liability during the succession planning process involves careful consideration of the succession plan itself. Employers can reduce the risk of violating federal and state discrimination laws by avoiding the following: Continue Reading

A manufacturer has “subjected its employees to an ugly mix of sexism, racism, and xenophobia and violated federal law prohibiting harassment and retaliation” the Equal Employment Opportunity Commission alleged in a lawsuit recently filed in New York. What led to such an inflammatory charge from the EEOC? Among other things, the employer’s implementation of an English-only rule in the workplace.

As the modern workforce in the United States becomes more diverse, an increasing number of employees speak languages other than, or in addition to, English. In response, some employers, like the one facing suit by the EEOC in New York, have enacted English-only workplace policies, mandating that their employees speak English, rather than any other language, while at work. Even if well-intentioned, these policies may serve as the basis for discrimination claims against employers.

In general, rules requiring employees to speak English in the workplace do not violate Title VII or other anti-discrimination laws if the employer has a legitimate, non-discriminatory reason for the rule and employees can practically comply with its restrictions. Non-discriminatory reasons for English-only rules may include maintaining employee morale or preventing alienation of employees, assisting management in supervising employees, and maintaining safety in hazardous environments. Proficiency in the English language may also be a permissible job requirement so long as it is a key component of the job position. Continue Reading

The Department of Justice is now squarely at odds with the Equal Employment Opportunities Commission over whether Title VII’s prohibition on sex discrimination also applies to discrimination against transgender employees. Specifically, in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., the EEOC had filed suit against a funeral home for terminating a transgender funeral director (who was born a male) after she informed the owner that she intended to transition from male to female, and would thus proceed to dress as a woman at work. The funeral home’s basis for terminating the employee was that her decision to dress as a woman at work violated its dress code policy, which required male employees to wear suits and ties, and female employees to wear skirts and business jackets. The EEOC asserted that the funeral home’s decision violated Title VII’s prohibition against discrimination on the basis of “sex,” because its decision was based on her failure to conform to sex stereotypes or, alternatively, that terminating someone for being transgender or “transitioning from male to female,” itself, qualifies as sex discrimination under Title VII. Ultimately, the Sixth Circuit Court of Appeals agreed, and on March 7, 2018, held that discrimination on the basis of transgender or transitioning status amounts to unlawful sex discrimination under Title VII. Continue Reading

Staffing agencies may provide the solution to a company’s short-term staffing needs. However, clients should not assume they can avoid liability for workplace issues by using a staffing agency; indeed, in some cases, a client is exposed to liability as a result of using a staffing agency. Engaging a staffing agency provides no protection against employment liability and, in some circumstances, the temporary worker may seek to hold the client liable as if it had hired the temporary worker directly, under a “joint employer” theory.

Joint employer liability arises in a number of contexts, including wage and hour, harassment, discrimination, and retaliation. Tests for determining joint employment vary by statute and jurisdiction and are often in flux. Various federal agencies use differing tests, and even those are in play.

For example, the Trump Administration published its fall regulatory agenda indicating that, among other things, it intends to update the Department of Labor’s policy on when staffing agencies and their clients, and franchisors and their franchisees, share legal responsibility for wage and hour violations with one another. Further, the National Labor Relations Board has published a Notice of Proposed Rulemaking that would narrow the existing joint-employer standard under the National Labor Relations Act. Under the Proposed Rule, “an employer may be considered a joint employer of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.” Comments regarding the NLRB’s proposed rule must be received by the Board on or before November 13, 2018. Continue Reading

Hoping that declaring bankruptcy will stay a discrimination or retaliation lawsuit against you brought by the U.S. Equal Employment Opportunity Commission (the “EEOC”) on behalf of a current or former employee? Think again.

On October 11, 2018, a Texas federal court in EEOC v. Tim Shepherd, M.D. ruled that filing for bankruptcy did not automatically stay a lawsuit brought by the EEOC against the debtor. In so ruling, the Northern District of Texas joined with the Third, Fourth, and Eighth Circuits (these appeals courts cover Arkansas, Delaware, Iowa, Pennsylvania, Maryland, Minnesota, Missouri, Nebraska, New Jersey, North Carolina, North Dakota, South Carolina, South Dakota, Virginia, the Virgin Islands, and West Virginia) as well as with various other district courts, including courts in Illinois, Kentucky, Michigan, Mississippi, New York, Ohio, and Utah, which have held the same. Continue Reading

A Connecticut federal district court has found an employer liable for discrimination for failing to hire a medical marijuana user based on a drug test.

Prior to the September 5 decision in Noffsinger v. SSC Niantic Operating Co., d/b/a Bride Brook Nursing & Rehab. Ctr., No. 3:16-cv-01938, 2018 U.S. Dist. LEXIS 150453 (D. Conn. Sept. 5, 2018), https://www.leagle.com/decision/infdco20180906954, it was widely believed that if an employer is subject to the federal Drug-Free Workplace Act (“DFWA”), they do not have to accommodate the use of medical marijuana.

Perhaps not. In Noffsinger, the Plaintiff suffered from PTSD after having a car accident. To treat her PTSD, doctor prescribed her marijuana in the evenings, and plaintiff registered as a qualifying patient with the state.

Plaintiff was recruited to be the director of recreational therapy at Defendant’s nursing home. Her interview was successful, and she was offered the position subject to the completion of pre-employment screenings. During the pre-employment screenings, Plaintiff disclosed that she took prescription medical marijuana and underwent a drug test. After Plaintiff tested positive for marijuana, Defendant rescinded its job offer. Continue Reading

Just how inclusive is your workplace? Do you use online applications? If visually impaired applicants cannot access your online application, chances are that your workplace fails to include these individuals. That means you could be both missing out on qualified applicants and making your business a target for claims.

Over the years, in an effort to simplify the processing of employment applications, many employers have turned to online platforms to handle those applications. Among other things, this allows easier filtering of applicants and their qualifications for the position(s) in question, and streamlines an otherwise daunting administrative task. But, could your online application process be filtering out individuals before they have an opportunity to complete it? As with retailers who sell their wares online, employers who use online applications can be targets for litigation involving a visually impaired applicant—or potentially a group of applicants—who was unable to apply for a job simply because he or she could not read the content of an online application. While public accommodation cases involving potential customers result in only the payment of the claimant’s attorneys’ fees, cases involving job applicants who have been denied the ability to seek employment because of a physical impairment can result in significant amounts being paid in damages. Continue Reading

Can an employee secretly record conversations with a co-worker, supervisor, human resources manager or executive and use that recording in a claim or lawsuit against his/her employer? It depends.

First, where you live is important. While the federal Wiretap Act, as amended by the Electronic Communications Privacy Act of 1986, permits recording as long as one party consents, state laws covering audio surveillance vary widely. In some states only one party need consent to the recording, but in other states both / all parties to the recording must consent. If you’re in a “one-party” consent state, you are generally permitted to record a conversation even without the other person’s knowledge or consent, whereas in a “two- or all-party consent” state, recordings need the consent of all parties involved. Continue Reading

A restaurant advocacy group has sued the Department of Labor challenging its “80/20 Rule,” which limits the use of a tip credit wage where workers spend more than 20% of their time doing work not directly related to tip-generating activities.

The Restaurant Law Center, a public policy affiliate of the National Restaurant Association and the Texas Restaurant Association, has filed suit (Restaurant Law Center v. U.S. Dept. of Labor, No. 18-cv-567 (W.D. Tex. July 6, 2018)) in Texas seeking to declare unlawful the 80/20 Rule, which is part of DOL’s Field Operations Handbook. The Handbook provides the DOL’s Wage and Hour Division investigators and staff with interpretations of statutory provisions, procedures for conducting investigations, and general administrative guidance.

The lawsuit is the latest development in the long struggle between the restaurant industry and government over using tips to comply with the Fair Labor Standards Act’s mandate to pay minimum wage and overtime to workers who are not exempt under one of the recognized exemptions. Continue Reading

Employers are alerted the extended suspension of Premium Processing will mean postponed start-dates for H-1B workers well beyond the expected October 1 annual start date. Moreover, because H-1B change of employer requests filed on or after September 11, 2018 will be subject to “normal” processing times, ranging anywhere from four to six months, employers better move fast to file these H-1B petitions using Premium Processing before September 11. For employers looking to benefit from Premium Processing after October 1, 2018, the government will require deeper pockets to cover the balances due for expedited adjudication.

Employers waiting to hire foreign professional workers are left in limbo over are the latest announcement by the U.S. Citizenship and Immigration Services. The ever-increasing H-1B adjudication process poses potentially disastrous risks for employers, foreign workers and H-1B hopefuls. On August 28, 2018, the Federal Immigration Agency announced it will be prolonging the previously advertised temporary suspension of Premium Processing for certain H-1B cases for an additional six months. The pause on premium processing for H-1B worker visas subject to the fiscal year 2019 lottery was originally slated to last until September 10, 2018, but that suspension is now being extended through an estimated date of February 19, 2019. Continue Reading